So it comes down today, the big decision. For all the complexity of the law, I think the question here is pretty simple. What we ought to learn is the answer to this question: are there any real limits on the power of the federal government beyond those specifically proscribed in the Constitution and the Bill of Rights?
If there are limits to what the government can do, Obamacare is going down. If the Court accepts the premise of the 70 years of jurisprudence that have flowed from the Wickard v. Filburn decision, then Obamacare stands.
Either way, the republic will survive. If Obamacare is struck down in whole, the next Congress will likely readdress the issue. If only the individual mandate is struck down, the next Congress will have to address the issue. If Obamacare stands, Mitt Romney and his Republican cohort will have to convince Americans that Obamacare must be eliminated, primarily by ensuring that the next Congress has enough Republicans in it to get a repeal measure through. In other words, no matter what happens today, the issue of how we pay for health care will remain on the table.
The larger question, especially about whether the Commerce Clause actually allows the federal government to require participation in a market, is what needs to be resolved today. I'm not confident that will happen, though. It would be very easy for the Court to kick the question down the road and play with the structure of Obamacare while leaving it intact. Even though I completely oppose Obamacare, in some ways it would be preferable if the Court left the whole thing stand rather than to tinker with it. I have long believed that a principal reason that the economy has not improved much in recent years is that there is a great deal of uncertainty about how much power the government holds and how it will use it. If you cannot be certain how your enterprise will be regulated, a prudent individual is less likely to take the sorts of calculated risks that are key to making a free market economy work. If we learn today that we aren't actually in a free market economy, because Congress really does have plenary power over commerce, then people will respond. If Congress does not have plenary power, people will respond to that, too. One way or another, the question is ripe for an answer.
Either we all are Roscoe Filburn, or we are not. Either way, it would be good to know.